Durrell v. Tech Electronics, Inc.
MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff Robert Durrell's Amended Motion to File Second Amended Complaint 17 is GRANTED, and his original Motion to file Second Amended Complaint 15 is denied as moot. IT I S FURTHER ORDERED that defendant Tech Electronics, Inc.'s Motion to Dismiss Counts IV, V, and VI of Plaintiff's Amended Complaint 8 , which I construe to be directed to the second amended complaint, is GRANTED to the extent it seeks to dis miss plaintiffs claim of slander raised in Count IV. In all other respects, the Motion to Dismiss is DENIED. IT IS FURTHER ORDERED that plaintiff Robert Durrell's Motion to File a Sur-Reply 12 is DENIED. This case will be set for a Rule 16 scheduling conference by separate Order. Signed by District Judge Catherine D. Perry on 11/15/2016. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
TECH ELECTRONICS, INC.,
Case No. 4:16 CV 1367 CDP
MEMORANDUM AND ORDER
Plaintiff Robert Durrell worked at Tech Electronics, Inc., since 1994. After
taking medical leave under the Family Medical Leave Act (FMLA)1 in 2016,
Durrell returned to work only to be terminated by Tech a few weeks later. In this
action, Durrell claims that Tech unlawfully retaliated against him for taking FMLA
leave, in violation of the FMLA; and unlawfully terminated him because of his
disability, in violation of the Americans with Disabilities Act2 and the Missouri
Human Rights Act.3 Durrell also brings state tort claims of slander/invasion of
privacy and intentional infliction of emotional distress. Finally, Durrell seeks a
declaration that portions of his employment agreement with Tech are void and/or
29 U.S.C. §§ 2601, et seq.
43 U.SC. §§ 12101-12213.
Mo. Rev. Stat. § 213.055.
Durrell now seeks leave to file a second amended complaint, which does not
add claims but merely adds a factual allegation to support his claim for declaratory
relief. I will grant this motion. Because the second amended complaint does not
change the nature or substance of Durrell’s claims, I will consider Tech’s pending
motion to dismiss as being directed to the second amended complaint. For the
following reasons, I will grant the motion in part and deny it in part.
Tech seeks to dismiss Durrell’s tort claims and his claim for declaratory
relief under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. When reviewing a
Rule 12(b)(6) motion to dismiss, I assume the allegations in the complaint to be
true and construe the complaint in plaintiff’s favor. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007); Huggins v. FedEx Ground Package Sys.,
Inc., 592 F.3d 853, 862 (8th Cir. 2010); Anzaldua v. Northeast Ambulance & Fire
Prot. Dist., 978 F. Supp. 2d 1016, 1021 (E.D. Mo. 2013). To survive a motion to
dismiss, the complaint need not contain “detailed factual allegations,” but it must
contain facts with enough specificity “to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. The issue in determining a Rule 12(b)(6)
motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff
is entitled to present evidence in support of the claim. See Skinner v. Switzer, 562
U.S. 521, 529-30 (2011) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Robert Durrell began working at Tech as an estimator/account manager in
1994. He was an at-will employee. Contained within his employment agreement
with Tech is a non-compete clause and a clause that permitted Tech to terminate
him if he became unable to perform his duties because of illness, accident, or other
physical or mental incapacity.
Beginning in 2015, Durrell began experiencing job-related anxiety for which
he received medical treatment. Beginning January 18, 2016, Durrell took a fiveweek period of leave under the FMLA. Tech was aware that his leave was on
account of work-related stress. When Durrell was ready to return to work after
five weeks, Tech delayed his return for an additional four-to-five-week period.
Upon Durrell’s return, Tech presented him with a document outlining mandatory
work-related changes to Durrell’s work activities. Durrell signed the agreement
under threat of immediate termination if he did not sign it. On April 22, 2016,
Tech terminated Durrell’s employment.
During Durrell’s medical leave, Tech sent Durrell many emails that required
responses. United States Marshals also went to Durrell’s home during this time
and demanded to examine the home and Durrell’s personal belongings. Durrell
The facts set out here are those alleged in the complaint and amended complaint, which I must
assume are true for purposes of the motion to dismiss.
claims that Tech was responsible for sending the marshals to his home.
After Durrell was terminated, a Tech supervisor demanded that Durrell
surrender the contents of his briefcase, which included Durrell’s personal items.
The marshals again visited Durrell at his home and demanded to examine his home
and personal belongings. Durrell claims that it was Tech who sent the marshals.
Sometime after all of these events occurred, Durrell suffered a heart attack.
In November 2016, Tech informed Durrell that it had obtained information
that Durrell may be employed by a competitor and thus was acting inconsistently
with the non-compete clause of the employment agreement. Tech advised that it
would asserts its rights thereunder.
Slander/Invasion of Privacy
Tech seeks to dismiss Durrell’s claims of slander and invasion of privacy,
arguing that Durrell has failed to allege sufficient facts to meet the requisite
elements of these torts.
Libel and slander are subspecies of defamation. Nazeri v. Missouri Valley
Coll., 860 S.W.2d 303, 308 (Mo. 1993). Under Missouri law, “[i]n a defamation
action, a plaintiff must establish: ‘1) publication, 2) of a defamatory statement, 3)
that identifies the plaintiff, 4) that is false, 5) that is published with the requisite
degree of fault, and 6) damages the plaintiff’s reputation.’” Cockram v. Genesco,
Inc., 680 F.3d 1046, 1050 (8th Cir. 2012) (quoting State ex rel. BP Prod. N. Am.,
Inc. v. Ross, 163 S.W.3d 922, 929 (Mo. banc 2005)). To state a claim for
defamation, a plaintiff must include in his complaint the express statements
claimed to be defamatory. Tri-Cty. Retreading, Inc. v. Bandag Inc., 851 S.W.2d
780, 785 (Mo. Ct. App. 1993) (citing Shurn v. Monteleone, 769 S.W.2d 188, 191
(Mo. Ct. App. 1989)).
Tech claims that Durrell did not include any alleged defamatory statements
in his amended complaint, and that therefore his claim of slander must fail. Durrell
does not address this contention in his response to Tech’s motion. I have reviewed
Durrell’s amended complaint and find Tech’s argument to be well taken. I will
therefore grant Tech’s motion to dismiss in this regard and dismiss Durrell’s
Invasion of Privacy
Under Missouri law, “[a]n individual’s right of privacy is legally protected,
and violation of such right can under given circumstances provide an entitlement to
relief.” Sofka v. Thal, 662 S.W.2d 502, 509 (Mo. banc 1983). The right of privacy
is invaded when there is “(1) unreasonable intrusion upon the seclusion of another;
or (2) appropriation of the other’s name or likeness; or (3) unreasonable publicity
given to the other’s private life; or (4) publicity that unreasonably places the other
in a false light before the public.” Id. at 510. Tech claims that the allegations in
Durrell’s complaint fail to state a claim under any theory of this tort. In response,
Durrell argues that he has sufficiently pled a claim under the intrusion-uponseclusion theory of liability. I agree.
For the tort of intrusion upon seclusion, Missouri has adopted the
Restatement (Second) of Torts’ definition:
One who intentionally intrudes, physically or otherwise upon the
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person.
Sofka, 662 S.W.2d at 510 (quoting Restatement (Second) of Torts § 652B). To
plead this claim under Missouri law, Durrell must allege “(1) the existence of a
secret and private subject matter; (2) a right in the plaintiff to keep that subject
matter private; and (3) the obtainment by the defendant of information about that
subject matter through unreasonable means.” Hester v. Barnett, 723 S.W.2d 544,
562 (Mo. Ct. App. 1987). Tech claims that Durrell has failed to allege any facts
demonstrating that Tech obtained private subject matter that Durrell had a right to
keep private and, further, that a reasonable person would not consider a mere visit
from law enforcement officers offensive.
First, there can be no doubt that Durrell’s home is a “secret and private
subject matter” that Durrell had a right to keep private. Ruzicka Elec. & Sons, Inc.
v. Int'l Bhd. of Elec. Workers, Local 1, AFL-CIO, 427 F.3d 511, 524 (8th Cir. 2005)
(Missouri law) (citing Engman v. Sw. Bell Tel. Co., 591 S.W.2d 78, 81 (Mo. Ct.
App. 1979)). Indeed, although ruling a Fourth Amendment issue, the Supreme
Court in Payton v. New York, 445 U.S. 573 (1980), recognized that “[i]n none is the
zone of privacy more clearly defined than when bounded by the unambiguous
physical dimensions of an individual’s home[.]” Id. at 589. An allegation that a
third party entered into a private home without permission satisfies the first two
elements of a claim of intrusion upon seclusion. Engman, 591 S.W.2d at 81. The
third element is satisfied if it is pled that the third party saw “whatever there was to
see” in the home, for “[w]hatever there was to see was the private property of the
plaintiffs.” Id. (internal quotation marks and citation omitted).
Here, taking all allegations of the complaint as true, Durrell has sufficiently
pled that, at the direction of Tech, a third party entered into his home without his
permission, thereby satisfying the first two elements of the tort. The third element
is satisfied by Durrell’s claim that his home and personal belongings were
thereafter searched – whatever there was to see and examine was Durrell’s private
property. Although Tech contends that Durrell failed to plead that Tech itself
obtained the private information, it can be reasonably inferred that Tech ultimately
obtained the information given Durrell’s claim that the third party who entered the
home and conducted the search acted at the behest of Tech.
In addition, the pleaded facts are sufficient to demonstrate that a reasonable
person would find the method employed to invade Durrell’s privacy highly
offensive. Durrell claims that while he was on medical leave for work-related
stress, Tech caused law enforcement officers to come to his home to search the
home and his personal belongings. Given that Tech knew that Durrell was on
medical leave for stress and was sending numerous emails to Durrell that required
responses, to also cause law enforcement officers to go his home during this time
to search his home and belongings would be highly offensive to a reasonable
Because Durrell’s complaint states sufficient facts to raise a right to relief for
invasion of privacy above the speculative level, Tech’s motion to dismiss this
claim will be denied.
Intentional Infliction of Emotional Distress
“To state a claim for intentional infliction of emotional distress, a plaintiff
must plead extreme and outrageous conduct by a defendant who intentionally or
recklessly causes severe emotional distress that results in bodily harm.” Gibson v.
Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997). “The conduct must have been ‘so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.’” Id. (quoting Warrem v. Parrish, 436 S.W.2d 670, 673 (Mo.
1969)). “The conduct must be ‘intended only to cause extreme emotional distress
to the victim.’” Id. (quoting K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. banc
As stated above, Durrell alleges that Tech was aware of his work-related
anxiety for which he took medical leave, but that despite its awareness of the
nature of Durrell’s illness, it nevertheless repeatedly sent emails to Durrell while he
was on leave, requiring him to respond; caused law enforcement officers to search
his home and his personal belongings while he was on medical leave for anxiety;
demanded that Durrell forfeit his personal belongings from his brief case after
termination; and again caused law enforcement officers to search his home after his
termination. Durrell thereafter suffered a heart attack. Given the allegation that
Tech engaged in this conduct knowing that Durrell’s anxiety was severe enough for
him to be on extended medical leave, I find at this stage of the proceedings that the
facts alleged in the complaint are sufficient to show that Tech engaged in extreme
and outrageous conduct for the purpose of intentionally or recklessly causing
Durrell to suffer extreme emotional distress, which ultimately resulted in bodily
harm. Tech’s motion to dismiss this claim will be denied.
As an initial matter, I note that Durrell’s claim for declaratory relief
challenges two clauses of his employment agreement: the non-compete clause and
the termination-for-illness clause. In its motion to dismiss, Tech seeks to dismiss
Durrell’s claim only as it relates to the non-compete clause. Therefore, to the
extent Tech seeks to dismiss Durrell’s claim for declaratory relief in its entirety, the
motion will be denied as to the termination-for-illness claim.
With respect to Durrell’s claim that the non-compete clause of his
employment agreement is unenforceable, the complaint alleges that Durrell was an
at-will employee and that his employment agreement with Tech provided:
5. During the employment relationship and for a period of one (1)
year(s) following the termination thereof, the Employee shall not,
either solely or jointly with or as agent or employee for any other
person, firm or company, directly or indirectly, carry on or be engaged
in, employed by, concerned or interested in carrying on, within a one
hundred and fifty mile radius of the cities of St. Louis, Missouri and
Columbia, Missouri, any trade or business competitive with or similar
to any trade or business carried on during the period of employment
by the Employer.
Sec. Amd. Compl., ECF #16 at para. 73. Durrell claims that this clause is
unforceable given that an at-will employment relationship cannot form the basis
for consideration to enforce a non-compete agreement.
In Missouri, a non-compete agreement requires the support of adequate
consideration, which is “‘something of value that moves from one party to the
other.’” JumboSack Corp. v. Buyck, 407 S.W.3d 51, 55 (Mo. Ct. App. 2013)
(quoting Sumners v. Service Vending Co., 102 S.W.3d 37, 41 (Mo. Ct. App.
2003)). “‘A valuable consideration may consist of some right, interest, profit or
benefit accruing to one party, or some forbearance, loss or responsibility given[,]
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suffered or undertaken by the other.’” Id. (quoting Reed, Roberts Assocs., Inc. v.
Bailenson, 537 S.W.2d 238, 240 (Mo. Ct. App.1976)) (alteration in JumboSack).
“An offer of at-will employment, or the continuation of at-will employment,
is simply not a source of consideration under Missouri contract law.” Strain v.
Murphy Oil USA, Inc., No. 6:15-CV-3246-MDH, 2016 WL 540810, at *4 (W.D.
Mo. Feb. 9, 2016) (citing Baker v. Bristol Care, Inc., 450 S.W.3d 770, 775 (Mo.
banc 2014), reh'g denied (Oct. 28, 2014); Jimenez v. Cintas Corp., 475 S.W.3d
679, 685 (Mo. Ct. App. 2015); Baker Frye v. Speedway Chevrolet Cadillac, 321
S.W.3d 429, 438 (Mo. Ct. App. 2010); Morrow v. Hallmark Cards, Inc., 273
S.W.3d 15, 26 (Mo. Ct. App. 2008)). This is so because with at-will employment,
“the employer makes no legally enforceable promise to do or refrain from doing
anything that it is not already entitled to do. The employer can still terminate the
employee immediately for any reason.” Baker, 450 S.W.3d at 775. Therefore,
there must be another source of consideration. Strain, 2016 WL 540810, at *4; see
also JumboSack, 407 S.W.3d at 55-57 (listing other potential sources of
Here, Durrell alleges that he was an at-will employee subject to a noncompete clause. Nothing in the complaint shows that Tech offered any
consideration in addition to Durrell’s at-will employment status to secure his
agreement to this clause. On the face of the complaint, therefore, Durrell’s claim
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that the clause is unenforceable given its lack of consideration adequately states a
claim upon which relief can be granted. Tech’s motion to dismiss this claim will
Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED that plaintiff Robert Durrell’s Amended
Motion to File Second Amended Complaint  is GRANTED, and his original
Motion to file Second Amended Complaint  is denied as moot.
IT IS FURTHER ORDERED that defendant Tech Electronics, Inc.’s
Motion to Dismiss Counts IV, V, and VI of Plaintiff’s Amended Complaint ,
which I construe to be directed to the second amended complaint, is GRANTED
to the extent it seeks to dismiss plaintiff’s claim of slander raised in Count IV. In
all other respects, the Motion to Dismiss is DENIED.
IT IS FURTHER ORDERED that plaintiff Robert Durrell’s Motion to File
a Sur-Reply  is DENIED.
This case will be set for a Rule 16 scheduling conference by separate Order.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 15th day of November, 2016.
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